nerdiegirlie

Trying for arbitration

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Hi! I am so happy to have found you guys! I have done a bunch of reading up on the forum, and am about to file my answer. I have included an affirmative defense to arbitration. My cc agreement states that either party must give 30 days notice to other party to resolve claim prior to starting arbitration. I guess I'm confused - do I first get judge to grant motion for arbitration and then send letter to JDB that I am requesting arbitration, wait 30 days, and then file demand for arbitration with either AAA or JAMS?

I am super nervous. I tried to negotiate a lump sum payment with Rausch & Sturm, but they came back asking for more. After I offered about 50% of debt owed in lump sum, they want my monthly income and expenses, and I am not inclined to provide this info - is that ill-advised? Should I cooperate with them? In any case, I am filing my answer on Monday, and will see where this leads. 

1. Who is the named plaintiff in the suit? Second Round Sub, LLC 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rausch & Sturm

3. How much are you being sued for? 2xxx

4. Who is the original creditor? (if not the Plaintiff) Comenity Bank

5. How do you know you are being sued? (You were served, right?) Served

6. How were you served? (Mail, In person, Notice on door) In person, he was actually quite lovely

7. Was the service legal as required by your state? yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? none

9. What state and county do you live in?  Texas

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) December 2018

11. When did you open the account (looking to establish what card agreement may be applicable)? April 2015

12. What is the SOL on the debt? To find out: 4 years

Statute of Limitations on Debts

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit served. 

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Nope

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').  No I didn't

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

14 days, so Monday! They didn't send any interrogatories. 

Trying to figure out how to insert an image, and failing. 

Basically, they claim that I opened an account with Comenity, failed to make payments. Account was cancelled. Comenity assigned account to Second Round. They want me to make payment. 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing.

18.  How did you find out about this site? Google!

 

 

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12 hours ago, nerdiegirlie said:

Hi! I am so happy to have found you guys! I have done a bunch of reading up on the forum, and am about to file my answer. I have included an affirmative defense to arbitration. My cc agreement states that either party must give 30 days notice to other party to resolve claim prior to starting arbitration. I guess I'm confused - do I first get judge to grant motion for arbitration and then send letter to JDB that I am requesting arbitration, wait 30 days, and then file demand for arbitration with either AAA or JAMS?

Does the agreement say anything about filing a lawsuit in regular court? I'm just wondering if perhaps they breached the agreement by not giving proper notice to you before filing a lawsuit. However if you've been trying to resolve the dispute with them, this maybe a moot point anyway. 

I would provide formal notice anyway, just to cover your bases. 

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1 hour ago, womanonfire said:

Does the agreement say anything about filing a lawsuit in regular court? I'm just wondering if perhaps they breached the agreement by not giving proper notice to you before filing a lawsuit. However if you've been trying to resolve the dispute with them, this maybe a moot point anyway. 

I would provide formal notice anyway, just to cover your bases. 

The problem with the OP possibly claiming the plaintiff breached the agreement is the fact that it was already breached by the consumer who failed to pay.  The party who first breaches a contract cannot claim a later breach by the other party.

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After you have been sued, you need to file an answer, then file the MTC Arb.  After that is granted, then you file for arbitration in the arb forum, unless the court order granting the MTC specifies that the plaintiff should file.  You need to follow any specific instructions the judge gives in the order.  I would recommend JAMS if it is available in the agreement.

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Thanks all! I filed my answer, and my motion to complete arbitration (have not heard on this yet). We have a pre-trial hearing next week, and am trying to sort out what to expect at that time. I suppose I continue to assert that I would like arbitration?

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7 hours ago, nerdiegirlie said:

Thanks all! I filed my answer, and my motion to complete arbitration (have not heard on this yet). We have a pre-trial hearing next week, and am trying to sort out what to expect at that time. I suppose I continue to assert that I would like arbitration?

Yes.  You need to insist that the MTC Arb is the ONLY thing to be discussed.  Not if you can settle or make payments (unless you actually want to go that route).  Note that the courts often try to push the parties to settle during these pre-trial hearings.  And not very subtly, either.   I mean really push (actually just you, the defendant) to give in and pay them.

But you must stick to your guns, insist on arbitration, and constantly point out that there is a jurisdictional motion pending before the court, which need to be addressed before anything else.

The plaintiff didn't respond to your motion?  Good, that means you should win by default.  Press that point as well.   After all, if they filed a motion and you didn't bother to answer it, what would be the result?  They would win automatically.  

 

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Thank you! 
I just called county clerk, and she advised judge will determine whether to schedule hearing for my mtc. I’m hoping that would postpone the pre-trial hearing. 
i guess I’m surprised the plaintiff didn’t send anything prior to pre-trial, but then I don’t know when discovery requests are filed anyway. 

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